Nyanda v. Dudodi and Ndilewa Civ. App. 2-M-70; 28/1/71; El-Kindy Ag. J.

 

Nyanda v. Dudodi and Ndilewa Civ. App. 2-M-70; 28/1/71; El-Kindy Ag. J.

The appellant was one of eight defendants against whom an exparte judgment had been passed. The defendants were partners in a firm styled “Umoja Store and Industries” which held an agency for tractors. Two tractors were ordered by the respondents (the original plaintiffs) and each paid a deposit of Shs. 7,830/- and 8,000/- respectively. The tractors were not delivered. The respondents then filed a suit to recover Shs. 15, 830/- plus costs and interests naming the eight partners as defendants. None of the defendants filed a written statement of defence and the case was proved ex parte. The appellant appealed on the grounds that: (a) the suit was filed wrongly at law in that the claim if at all is against a firm ‘umoja store and Industries”. Formed by 9 partners and not 8, and the suit is bad for misjoinder of defendants; (b) alternatively the respondents did not prove that the appellant had received the amount claimed; (c) that the judgment and decree of District Court were not definitive and conclusive. The respondent on the other hand argued that the appeal was time barred because article 164 of the Indian Limitation 1908 gave a time limit of 30 days which had passed.

Held: (1) “The record clearly showed that the learned counsel had asked for an adjournment of this case to enable him to produce the alleged certificate of registration which would have shown the exact number of partners, but he did not did so. It is not, therefore, open for him too argue this point of misjoinder before me ……. In the absence of evidence to the contrary, the evidence on record, on balance of probability showed that the partners were eight people and that the appellant was one of them.” (2) The respondents had proved that the appellant had received the money and was now accountable for it. (3) “Basically I agree that a judgment should be in the form stipulated in Section 3 of the Civil Procedure Code i. e. a reasoned decision on various issues which arose for consideration, and the decree should reflect what the judgment decided. In this case, the learned magistrates accepted the evidence led by the respondents as supported by the documents which were produced in court, and came to the conclusion that the evidence has established the respondents’ claim against the partners. Nothing which was led by evidence was contested and therefore there are no issues to be resolved. Hence, there was no need for the learned magistrate to write a lengthy and reasoned judgment.” (4) However, the decree was not in the proper form. But Section 73 Civil Procedure Code shows that a decree should not be reversed purely on technical grounds unless it has resulted in failure of justice. There was no failure of justice here and therefore the decree is not to be reversed. (5) This was an appeal and not an application to set aside an exparte judgment and therefore it is article 156 and not article 164 of the Indian Limitation act 1908. The time of limitation for an appeal as laid down by article 156 is 90 days and as this time had not expired, the appeal was not time barred.